Ross C. McLean

Aviva Insurance Company of Canada brought a motion to strike the plaintiff towing company's claim against it for vehicle storage fees.

Aviva had denied coverage to its insured, the co-defendant, due to her failure to cooperate and potential breach of statutory conditions regarding an unauthorized driver.

The towing company argued Aviva's negotiations regarding storage fees created an estoppel.

The court found no privity of contract between the towing company and the insurer, and held that the insurer's efforts to minimize damages did not constitute waiver or estoppel.

The claim against Aviva was struck and the action dismissed with costs.

The plaintiff subcontractor sued the defendant contractor for unpaid holdback and overtime costs related to the installation of millwork at a casino project.

The defendant argued that it was entitled to withhold payment due to a 'pay when paid' clause, as the owner had charged back costs for completing the delayed work.

The court found that the delay was primarily caused by the defendant's failure to deliver materials on time.

The court held that the defendant could not rely on the 'pay when paid' clause because its own default caused the owner's non-payment.

The plaintiff was awarded the holdback amount and a portion of the overtime costs that were explicitly authorized in writing.